Other Barks & Bites for Friday, August 19: Eleventh Circuit Holds Party to Willful Blindness Standard in DMCA Case, Seventh Circuit Finds Personal Jurisdiction Over Chinese NBA Counterfeiter, and Fifth Circuit Accepts Jurisdiction Over Walker Process Claims for Patent Fraud

This week in Other Barks & Bites: the Federal Circuit rules that Eagle Pharmaceutical’s ANDA defines a product that does not infringe upon Par Pharmaceutical’s patents covering Vasostrict; an inventor amicus brief in the OpenSky IPR asks USPTO Director Vidal to mandate sanctions for abuse of PTAB process; the Seventh Circuit affirms a default judgment against a Chinese counterfeiter of sports merchandise after finding personal jurisdiction over the defendant; the Fifth Circuit accepts the Federal Circuit’s transfer of Walker Process claims over the fraudulent obtaining of patent claims despite a jurisdictional disagreement; the Eleventh Circuit finds that Day To Day Imports could not appeal the district court’s application of the willful blindness standard to its alleged violation of Section 512; and members of the House Science Committee call upon the Biden Administration to make a robust investment into the DoE’s Office of Science.

Bites 

CAFC Says Eagle’s ANDA Defines a Non-Infringing Generic Version of Vasostrict – On Thursday, August 18, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Par Pharmaceutical, Inc. v. Eagle Pharmaceuticals, Inc. in which the appellate court affirmed rulings by the District of Delaware that Eagle’s abbreviated new drug application (ANDA) for a generic version of the blood pressure drug Vasostrict does not infringe any claim of Par Pharmaceutical’s patents as the generic vasopressin composition defined in Eagle’s ANDA maintains a pH balance outside of the range claimed in Par Pharmaceutical’s patents.

Eleventh Circuit Affirms Willful Blindness Standard on DMCA Claim Due to Stipulation – On Wednesday, August 17, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Alper Automotive, Inc. v. Day To Day Imports, Inc. in which the appellate court affirmed a district court’s ruling that Day To Day violated provisions of the Digital Millennium Copyright Act (DMCA) codified at 17 U.S.C. § 512(f). The Eleventh Circuit nixed Day To Day’s appeal of the district court’s use of the willful blindness standard for the knowledge requirement of Section 512(f), which although unprecedented within the Eleventh Circuit was the standard to which Day To Day stipulated prior to the district court trial.

Failure to Seek SAS Institute Remand Dooms Ingenio’s Appeal of Click-to-Call Lawsuit – On Wednesday, August 17, the Federal Circuit issued a precedential decision in Click-to-Call Technologies LP v. Ingenio, Inc. in which the appellate court reversed a summary judgment ruling in the Western District of Texas invalidating a patent claim owned by Click-to-Call. The Federal Circuit ruled that Ingenio reasonably could have raised its invalidity challenge during parallel proceedings at the Patent Trial and Appeal Board (PTAB) and was thus estopped from challenging the claim based on prior art that was also asserted in the PTAB petition.

Seventh Circuit Affirms Default Judgment Against Chinese NBA Merch Counterfeiter – On Tuesday, August 16, the U.S. Court of Appeals for the Seventh Circuit issued a ruling in NBA Properties, Inc. v. HANWJH in which the appellate court affirmed a default judgment against HANWJH for online sales of counterfeit merchandise including trademarks of the National Basketball Association (NBA) and other professional and collegiate sports associations. The Seventh Circuit dismissed HANWJH’s arguments that it wasn’t subject to personal jurisdiction in district court for the online sale of a single infringing product that was distributed to Illinois.

Amicus Brief in OpenSky IPR Asks Director Vidal to Mandate Abuse of Process Reviews – On Tuesday, August 16, inventor Ramzi Khalil Maalouf filed an amicus brief with the PTAB in an inter partes review (IPR) proceeding brought by OpenSky Industries against a VLSI Technology patent, a proceeding currently undergoing review by U.S. Patent and Trademark Office Director Kathi Vidal. Maalouf’s brief asks Director Vidal to change the language of 37 CFR 42.12(a)(6) so that the PTAB would be mandated to enter sanctions against parties who engage in abuse of process at the tribunal.

CAFC Rules That Arthrex Doesn’t Require Director Review of PTAB Institution Decisions – On Tuesday, August 16, the Federal Circuit issued a precedential order on petition in In re: Palo Alto Networks, Inc. in which the appellate court denied mandamus relief to Palo Alto Networks after finding that the U.S. Patent and Trademark Office’s policy of refusing requests for Director review of institution decisions at the PTAB does not violate the Appointments Clause under the U.S. Supreme Court’s 2021 decision in United States v. Arthrex.

Fifth Circuit Accepts Appellate Jurisdiction Over Walker Process Claims Against Patent  Owner – On Monday, August 15, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Chandler v. Phoenix Services, L.L.C. in which the appellate court affirmed the district court’s summary judgment ruling dismissing Walker Process antitrust claims against Phoenix Services as time-barred. The Fifth Circuit made the ruling after finding that it had appellate jurisdiction over the case, which was previously transferred by the Federal Circuit, because the underlying patent was found unenforceable and the Fifth Circuit’s decision would not affect the patent’s validity.

House Science Committee Members Call for More DoE Office of Science Funding – On Thursday, August 11, 21 members of the U.S. House of Representatives’ Committee on Science, Space and Technology signed a letter asking officials within the Biden Administration to develop a robust budget proposal for the U.S. Department of Energy’s (DoE) Office of Science in line with the large amount of federal science funding authorized by the CHIPS and Science Act to support the Office of Science’s activities in driving research in critical fields like quantum computing, artificial intelligence, microelectronics and climate change mitigation.

Barks 

CAFC Issues Show Cause Order on Unsealing Certain Paper Case Records – On Wednesday, August 17, the Federal Circuit issued an order giving parties to certain cases involving paper case records that are currently being accessioned to the National Archives and Records Administration a total of 60 days to show cause why certain confidential filings, except those protected by statute, should not be unsealed and made available to the public.

Judge Albright Enhances Damages Award Against CH Lighting But Denies Attorneys’ Fees, Injunction – On Tuesday, August 16, U.S. District Judge Alan D. Albright of the Western District of Texas entered a post-verdict ruling determining that Jiaxing Super Lighting Electric Appliance was entitled to enhanced damages under the Federal Circuit’s Read Corp. factors for CH Lighting Technology’s litigation conduct, but denied Jiaxing’s motions for attorneys’ fees and a permanent injunction.

USITC Institutes Section 337 Investigation Against Lenovo, Motorola Mobile Devices – On Tuesday, August 16, the U.S. International Trade Commission announced that the agency had decided to institute a Section 337 investigation into claims of patent infringement filed by Japanese electronics firm Maxell against certain mobile electronic devices imported into the U.S. for sale by Chinese firm Lenovo Group and Chicago-based Motorola Mobility.

USPTO Extends Public Comment Period for Customer Experience Info Collection – On Tuesday, August 16, the U.S. Patent and Trademark Office published a notice in the Federal Register extending by 30 days the public comment period for an information collection that the agency is using as a means for garnering customer and stakeholder feedback regarding the agency’s highest-impact customer journeys.

Cedar Band of Paiutes Wins Cancellation of Chenoa Fund Trademark Application – On Monday, August 15, the Trademark Trial and Appeal Board (TTAB) entered a precedential decision in CBC Mortgage Agency v. TMRR, LLC in which the TTAB granted a petition for cancellation of TMRR’s trademark application for a “Chenoa Fund” logo covering a mortgage financing program after finding that TMRR could not establish ownership of the mark.

USPTO Announces Recent Additions to Agency’s Executive Staff – On Monday, August 15, the U.S. Patent and Trademark Office announced recent promotions or hires filling several executive staff positions at the agency, including Shirin Bidel-Nayat to serve as Chief of Staff, Russell Lopez to serve as Chief Communications Officer, and Dede Zecher to serve as Chief Advisor to the Director.

Copyright Office Begins Open Application Period for Ringer Fellowship Program – On Monday, August 15, the U.S. Copyright Office announced that it had begun the open application period for the Barbara A. Ringer Copyright Honors Program, which offers an 18- to 24-month fellowship to early career attorneys demonstrating exceptional interest in copyright law, with applications to be accepted through December 31 of this year.

Massachusetts Jury Finds That Cisco Data Centers Don’t Infringe Egenera Patents – On Monday, August 15, a jury verdict entered in the District of Massachusetts found that data networking firm Cisco Systems did not infringe upon patent claims covering data center platform technologies and owned by Massachusetts-based cloud computing firm Egenera.

This Week on Wall Street

GM to Reinstate Quarterly Dividend at Reduced Rate and Increase Stock Buyback Plan – On Friday, August 19, American automaker General Motors announced that the company would be reinstating the quarterly common stock dividend it suspended in the early days of the COVID-19 pandemic, at a rate of 9 cents per share instead of the 38 cents per share dividend issued prior to COVID-19. The carmaker also announced that it would be increasing its common stock buyback program from the originally planned $3.3 billion up to as much as $5 billion.

Cisco Beats EPS, Revenue Expectations in Q4 2022 Earnings Report – On Wednesday, August 17, data networking firm Cisco Systems issued its earnings report for the fourth quarter of the 2022 fiscal year showing that the company beat analyst expectations in both earnings per share (83 cents per share vs. 82 cents expected) and revenue ($13.1 billion vs. $12.79 billion expected) thanks in large part to outperformance in the company’s data-center networking switch division.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2021 are announcing quarterly earnings next week (2020 rank in parentheses):

• Monday: None
• Tuesday: Intuit, Inc. (233rd); Medtronic plc (32nd)
• Wednesday: NVIDIA Corp. (t-163rd); Salesforce.com, Inc. (73rd); Splunk Inc. (t-186th)
• Thursday: Dell Technologies Inc. (16th); Marvell Technology Group (t-174th); VMware, Inc. (45th)
• Friday: ZTE Corp. (207th)

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Author: damedeeso